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Right to self-representation

The Appeals Chamber upheld in this decision another principle which had been laid down Milošević: the accused before the International Tribunal have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgement that they would be better off if represented by a counsel.[1]

The Appeals chamber considered that, before restricting the accused’s right to self-representation, the Trial Chamber must issue an explicit warning specifically directed to the accused in the form of an oral or written statement. It held:

a warning with regard to possible assignment of counsel needs to be explicit, in the form of an oral or written statement to an accused explaining the disruptive behaviour and that, if it persists, the consequence will be restriction on the accused’s right to self-representation.[1]

The Appeals Chamber recalled that Article 21(4)(d) of the Statute provides the accused before the International Tribunal with the presumptive right of self representation. However, this right is not absolute and can be restricted where a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.[1] The right ofself-representation can be restricted irrespectively from the actual intention of the accused to obstruct the proceedings.[2] The Appeals Chamber recalled that, for the right to self-representation to be restricted, it is upon the Trial Chamber to decide

“Whether the appropriate circumstances exist and what they are is a matter for the Trial Chamber to determine on a case by case basis when considering the particular facts of a case as a whole.”[3]

In view of this principle, the Appeals Chamber affirmed that the Trial Chamber, in order to assign a Counsel to an accused who chose to self-represent himself, did not have to find that the accused’s behaviour the Trial Chamber had been “extremely disruptive to the point of rendering continuation of the proceedings practically impossible” but that “[a]ll that the Trial Chamber was required to do was find that appropriate circumstances, rising to the level of substantial and persistent obstruction to the proper and expeditious conduct of the trial exist, thereby warranting restriction of Šešelj’s right to self-representation.”[4]

The Trial Chamber, in the Impugned Decision[1], held that to restrict the right to self-representation during the pre-trial stage, the accused’s behaviour should provide, when considered as a whole,

a strong indication that self-representation may substantially and persistently obstruct the proper and expeditious conduct of the proceedings.[2]

The Appeals Chamber agreed with the aforementioned approach adopted by the Trial Chamber, save for use of the word “may”, and held that the word “would” is more appropriate

as a Trial Chamber should have a high degree of certainty before exceptionally placing a restriction on the right to self-representation pre-emptively at the pre-trial stage before an accused has had the opportunity to conduct his own defence at trial.[3]

The Appeals Chamber examined whether the Appeal Decision which re-instated Šešelj’s presumptive right to self-representation allowed the Trial Chamber to immediately assign standby counsel, in light of the fact that the Appeal Decision did not specifically note the extent of the Trial Chamber’s discretion in this matter. The Appeals Chamber concluded that the imposition of standby counsel by the Trial Chamber had the practical effect of undermining the Appeal Decision.

19. […] Article 21(4) of the Statute of the International Tribunal. Article 21(4)(d) of the Statute grants the right of an accused “to defend himself in person or through legal assistance of his own choosing” The jurisprudence of this Tribunal has interpreted this provision of Article 21 as providing an accused with “the presumptive right to self-representation”.[1] However, a presumptive right to self-representation does not translate into an absolute right and there are circumstances in which this right may be curtailed. Of relevance to this appeal, a Trial Chamber may place restrictions on the right of an accused to self-representation where “a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial”.[2]

20. The Appeals Chamber has already indicated […] what it considers to be the real issue for it to determine […], whether the Appeal Decision, wherein Šešelj’s right to self-representation was re-instated, allowed the Trial Chamber to immediately order the assignment of standby counsel without establishing any persistent or obstructionist behaviour on his part. Šešelj’s view is that it did not and it is in light of that view that Šešelj has undertaken action, which resulted in the Trial Chamber determining that it had the right to impose Counsel in the Impugned Decision. […]

22. […] [I]t would have been better if the Appeals Chamber in returning to Šešelj the right to self-representation would have made clearer what it considered that to mean with respect to the discretion on the part of the Trial Chamber to immediately impose standby counsel with a right to jump in and take over the proceedings in the circumstances identified by the Trial Chamber in its Decision to Assign Standby Counsel. This is particularly so given that the Appeals Chamber was made abundantly aware of Šešelj’s opposition to standby counsel during his pre-trial proceedings.

23. […] Having just had its decision on the assignment of counsel overturned on appeal the Trial Chamber viewed [imposing standby counsel] as a necessary move to preserve Šešelj’s right to a fair and expeditious trial in light of the history of proceedings in his case pre-trial.

24. […] The Appeals Chamber […] must […] acknowledge that its decision restoring the right of Šešelj to self-representation was not clear as to whether the restoration of that right to self-representation allowed the Trial Chamber to restore the status quo by immediately reassigning standby counsel, following the Appeal Decision without establishing any obstructionist conduct on the part of Šešelj. The Appeals Chamber notes that standby counsel is not assigned counsel, and there are clear limits on the ability of standby counsel to participate in the proceedings, including that such participation did depend upon the conduct of Šešelj. However, the fact that the Registry appointed former assigned counsel to act as standby counsel following the Appeal Decision, and then following the protest by Šešelj to that appointment, the Trial Chamber ordered the reassignment of standby counsel to act as assigned counsel in the Impugned Decision[3] further entrenched Šešelj’s belief that the Trial Chamber had not respected the right restored to him by the Appeals Chamber. He was not given a clean slate by the Trial Chamber following the Appeal Decision.

26. While the Appeals Chamber did not explicitly state that the Trial Chamber was prohibited from imposing standby counsel, the Appeals Chamber finds that the Trial Chamber decision to do so, immediately upon the issuing of its decision and without establishing any additional obstruction by Šešelj, did have the practical effect of undermining the practical implementation of that decision.

19. There is no doubt that, by choosing to conduct his own defence, the Accused deprived himself of resources a well-equipped legal defence team could have provided. A defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel. The legal system’s respect for a defendant’s decision to forgo assistance of counsel must be reciprocated by the acceptance of responsibility for the disadvantages this choice may bring.[1] Where an accused elects self-representation, the concerns about the fairness of the proceedings are, of course, heightened, and a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair.

[1] This principle is firmly enshrined in jurisdictions which recognize a defendant’s right to self-representation. See, e.g.,Regina v. Walton, [2001] E.W.C.A. Crim. 1771 (C.A.), para. 50 (“[T]he right to defend oneself is acknowledged by the E[uropean] C[onvention] on H[uman] R[ights] Article 6(3)C. The exercise of that right may bring advantages and disadvantages. If a man chooses to exercise that right, whilst he may benefit from the advantages, he cannot pray in aid the ordinary and anticipated disadvantages of his choice in support of the argument that there was inequality of arms.”); Martinez v. Court of Appeal, 528 U.S. 152, 162 (2000) (“the trial judge is under no duty ... to perform any legal ‘chores’ for the [self-representing] defendant that counsel would normally carry out”) (citation omitted); Regina v. Fabrikant, (1995) 67 Q.A.C. 268 (C.A. Que.), para. 80 (“[A]n unrepresented accused enjoys no particular privilege.”); Regina v. Peepetch, 2003 SKCA 76, para 66 (“[A defendant] cannot demand the right to represent himself and at the same time demand the right to effective assistance of counsel. Having decided to represent himself he must live with the consequences and cannot later complain that his conduct of the trial did not reach the level of a competent lawyer.”).

11. Both the Trial Chamber and the Prosecutor recognize that defendants have a presumptive right to represent themselves before the Tribunal. It is not hard to see why. Article 21 of the ICTY Statute, which tracks Article 14 of the International Convention on Civil and Political Rights,[1] recognizes that a defendant is entitled to a basic set of “minimum guarantees, in full equality,” including the right “to defend himself in person or through legal assistance of his own choosing.”[2] This is a straightforward proposition: given the text’s binary opposition between representation “through legal assistance” and representation “in person,” the Appeals Chamber sees no reasonable way to interpret Article 21 except as a guarantee of the right to self-representation. Nor should this right be taken lightly. The drafters of the Statute clearly viewed the right to self-representation as an indispensable cornerstone of justice, placing it on a structural par with defendants’ right to remain silent,[3] to confront the witnesses against them,[4] to a speedy trial,[5] and even to demand a court-appointed attorney if they cannot afford one themselves.[6] In the words of the United States Supreme Court in Faretta v. California, which was recognized by the Trial Chamber as the classic statement of the right to self-representation,[7] an “unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction,” such that “counsel [becomes] not an assistant, but a master.”[8] Defendants before this Tribunal, then, have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgment that they would be better off if represented by counsel.

12. While this right to self-representation is indisputable, jurisdictions around the world recognize that it is not categorically inviolable. In Faretta itself, the United States Supreme Court noted that, since “[t]he right of self-representation is not a license to abuse the dignity of the courtroom,” a trial judge “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.”[9] Recognizing this same basic contingency of the right, England,[10] Scotland,[11] Canada,[12] New Zealand,[13] and Australia[14] have all developed the principle that, in order to protect vulnerable witnesses from trauma, courts may severely restrict the right of defendants to represent themselves in sexual assault trials. Scotland goes so far as to forbid such defendants from conducting any portion of their defenses in person.[15] And while this Appellate Chamber has not previously passed on the question, existing precedent from contemporary war crimes tribunals is unanimous in concluding that the right to self-representation “is a qualified and not an absolute right.”[16]

13. Recognizing that a defendant’s right to represent himself is subject to some limitations, however, does not resolve this case. It must further be decided whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial. The Appeals Chamber believes that, under the appropriate circumstances, the Trial Chamber may restrict the right on those grounds. It is particularly instructive in this regard to consider the parallel statutory right of an accused before the Tribunal “to be tried in his [own] presence”[17] – a right that is found in the very same clause of the ICTY Statute as the right to self-representation. Notwithstanding the express enunciation of this right in the Statute, Rule 80(B) of the Rules of Procedure and Evidence allows a Trial Chamber to “order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct.” If a defendant’s right to be present for his trial – which, to reiterate, is listed in the same string of rights and indeed in the same clause as the right to self-representation – may thus be restricted on the basis of substantial trial disruption, the Appeals Chamber sees no reason to treat the right to self-representation any differently.

[15] Criminal Procedure (Scotland) Act 1995, sec. 288C(1), as amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002. Civil law jurisdictions, of course, go further still: as the Trial Chamber noted, defendants often have no choice but to accept representation by counsel in serious criminal cases. E.g., Article 274 of the French Code of Criminal Procedure; Section 140 of the German Code of Criminal Procedure; Article 294 of the Belgian Code of Criminal Procedure; Article 71(1) of the Yugoslavian Code of Criminal Procedure; Articles 282 and 283 of the Code of Criminal Procedure of the Republic of Korea.

[16] Prosecutor v. Norman, Case No. SCSL-2004-14-T, Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, paras. 9, 15 (Special Court for Sierra Leone) (denying defendant’s request to represent himself in significant part because of the “long adjournments” that would be necessary if the request were granted); see alsoProsecutor v. Šešelj, Case No. IT-03-67-PT, Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence,” 9 May 2003, para. 20 (recognizing that right to self-representation “is not absolute” and may be restricted on the basis of the Tribunal’s “legitimate interest in ensuring that the trial proceeds in a timely manner without interruptions, adjournments, or disruptions”).

16. The Appeals Chamber parts ways with the Trial Chamber, however, in its assessment of the Order on Modalities.[1] In spelling out the future working relationship between Milošević and Assigned Counsel, the Order sharply restricts Milošević’s ability to participate in the conduct of his case in any way. The Order makes his ability to participate at all contingent on a case-by-case, discretionary decision by the Trial Chamber.[2] It implies that he would only occasionally – “where appropriate” – be permitted to examine witnesses.[3] And it indicates that, even where he is permitted to examine a witness, he may do so only after Assigned Counsel had already completed their examination. In every way, then, the Order relegates Milošević to a visibly second-tier role in the trial.

17. These sharp restrictions, unfortunately, were grounded on a fundamental error of law: the Trial Chamber failed to recognize that any restrictions on Milošević’s right to represent himself must be limited to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial. When reviewing restrictions on fundamental rights such as this one, many jurisdictions are guided by some variant of a basic proportionality principle: any restriction of a fundamental right must be in service of “a sufficiently important objective,” and must “impair the right . . . no more than is necessary to accomplish the objective.”[4] Similarly, while the International Covenant on Civil and Political Rights allows some restriction of certain civil rights where “necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others,”[5] the United Nations Human Rights Committee has observed that any such restrictions “must conform to the principle of proportionality; . . . they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.”[6] And the ICTY itself has been guided by a “general principle of proportionality” in assessing defendants’ suitability for provisional release, noting that a restriction on the fundamental right to liberty is acceptable only when it is “(1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target.”[7]

18. The Appeals Chamber considers that a proportionality principle of this sort was clearly called for here. The excessiveness of the Trial Chamber’s restrictions is apparent for at least three reasons: (1) the medical reports relied on by the Trial Chamber explicitly rejected the notion that Milošević’s condition is permanent;[8] (2) there was no evidence that Milošević had suffered from any health problems since late July; and (3) Milošević made a vigorous two-day opening statement without interruption or apparent difficulty. Despite these indications of possible improvement in Milošević’s condition, however, the Trial Chamber failed to impose a carefully calibrated set of restrictions on Milošević’s trial participation. Given the need for proper respect of a right as fundamental as this one, this failure was an improper exercise of the trial court’s discretion.[9]

[1] We are unconvinced by the Prosecution’s contention that the propriety of this Order is not fairly encompassed within the question certified for review. See Prosecution Motion to Strike Ground of Appeal (3) from Assigned Counsel “Appeal Against the Trial Chamber’s Decision on Assignment of Defence Counsel,” 5 October 2004. The Trial Chamber’s decision to assign counsel cannot be understood without reference to its explanation of what, practically speaking, that assignment entails; indeed, the Reasons for Assigning Counsel itself reproduces all relevant portions of the Order on Modalities.

[2] Order on Modalities [Order on the Modalities to be Followed by Court Assigned Counsel, 3 September 2004], pp. 2-3.

[3] Order on Modalities, pp. 2-3.

[4] Elloy de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands, and Housing, 1 A.C. 69 (1998) (United Kingdom Privy Council) (striking down a restriction on civil servants’ right to demonstrate) (citing Zimbabwean, South African, and Canadian jurisprudence); see also, e.g., McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003) (United States Supreme Court) (finding that a campaign finance law must not restrict the right to free speech substantially more than the extent necessary to advance the state’s interest in preventing electoral corruption); Chassagnou v. France, 29 E.H.R.R. 615 (2000) (European Court of Human Rights) (holding that only “indisputable imperatives” can justify restrictions on a right protected by the European Convention on Human Rights, and even then only if the restrictions are a “necessary” and “proportionate” means of advancing the state objective) (striking down French law requiring rural landowners to make their land available to hunters); Edmonton Journal v. Alberta, 1989 CarswellAlta 198 (Canadian Supreme Court) (holding that a statute restricting the publication of information about divorce proceedings must impair the right to freedom of expression no more than strictly necessary to protect personal privacy).

[5] International Covenant on Civil and Political Rights, Article 12, para. 3.

[6] Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.6, 12 May 2003, p. 176 (“The application of restrictions in any individual case must . . . meet the test of necessity and the requirements of proportionality.”).

[8] The doctors explicitly concluded that Milošević is not “unfit by any permanent condition,” but rather “has shown himself by the history to be periodically, but now somewhat regularly unfit.” Hearing, 30 September 2004, T.27029.

[9] The Prosecution proposes that we uphold the entirety of the Trial Chamber’s order on alternate grounds: specifically, that Milošević practiced a premeditated policy of deliberate obstructionism by engaging in disruptive courtroom behavior as well as by sabotaging his medication regimen to artificially induce periods of poor health. While intentional obstructionism of this kind, in principle, might well justify the imposition of counsel on an unwilling defendant, the Trial Chamber explicitly declined to make any factual findings on this score. Opinion Assigning Counsel, para. 67. It is rarely appropriate for an Appeals Chamber to make the first assessment of complicated, fact-intensive evidence on an interlocutory appeal (particularly as to evidence that turns in part on an in personam assessment of the intangibles of courtroom demeanor), and we decline to do so here.

39. The Appeals Chamber recalls that Article 21(4)(d) of the Statute does not support the right to legal assistance for an accused who elects to self-represent.[1] The principle of equality of arms referenced in Article 21(1) of the Statute does not imply that an indigent self-represented accused should necessarily be provided with funded legal aid. By his very choice to self-represent, he is asserting his ability to conduct his case without legal assistance and therefore "must accept responsibility for the disadvantages this choice may bring".[2] […]]

[s]hould the Accused lack the ability to present his defence efficiently or effectively because of his lack of knowledge of law and legal procedures, or because of the complexities of the case, the solution envisaged by the Appeals Chamber was not the provision of experienced, high-level professional assistants but “restriction of his right to self representation”.[1]

The Appellant submits that the Krajišnik Appeal Decision did not contemplate that the remedy to an accused’s inability to undertake his own defence without high-level legal support was the restriction of his right to self-representation because the relevant portion of the Krajišnik Appeal Decision cites the Šešelj Appeal Decision which was concerned with the imposition of counsel in a situation of disruptive behaviour rather than a need for legal assistance.[2] Accordingly, the Appellant submits that the imposition of counsel referred to in the Krajišnik Appeal Decision addresses a situation in which “either through disruptive behaviour or continued poor health, [the accused] exhibits conduct which substantially obstructs the conduct of the trial” not a situation of lack of knowledge of the law or legal procedures.[3] However, the Appeals Chamber finds that, read in context, the Krajišnik Appeal Decision was indeed addressing an accused’s ability to conduct his own trial, not a situation of misconduct or ill health. The Krajišnik Appeal Decision reads:

Moreover, the Appeals Chamber considers that where an accused elects to self-represent, he is asserting his ability to conduct his case without legal assistance and thus Tribunal funding for legal aid for him can be presumed to be unnecessary to the conduct of fair trial. To the extent that an accused lacks the ability to conduct his own case and his self-representation is thus “substantially and persistently obstructing the proper and expeditious conduct of his trial”, then the remedy is the restriction of his right to self-representation. To allow an accused to self-represent and yet also receive full legal aid funding from the Tribunal would, as the saying goes, let him have his cake and eat it too.[4]

14. Accordingly the Appeals Chamber finds no error in the Trial Chamber’s interpretation of the Krajišnik Appeal Decision to the effect that where an accused lacks the requisite knowledge of the law or legal procedures to the extent that it will substantially and persistently obstruct the proper and expeditious conduct of the trial, the solution is not the funding of highly experienced legal associates, but rather the curtailment of his right to self-representation.

16. The Krajišnik Appeal Decision recognised that “[t]o the extent that the Registry requires or encourages indigent self-representing accused to coordinate their defences through designated legal associates”, it “should adequately reimburse the legal associates for their coordinating work and for related legal consultation.”[1] However, it concluded that “[s]uch funding should not be comparable to that paid to counsel for represented accused (particularly since work such as the drafting of written filings should be considered the responsibility of the self-representing accused)”.[2] While the Krajišnik Appeal Decision does contemplate the provision of legal consultation by a legal associate, it makes clear that this is not to be equated with the comprehensive work of counsel which is to be undertaken by the accused himself. The mere fact that a legal associate may provide legal consultation does not necessarily imply that he or she will undertake the functions and tasks for which counsel is normally responsible. Indeed, much of the work undertaken by legal assistants in a regular defence team, such as researching and preparing memoranda on legal issues, could fall within the meaning of legal consultation yet their role is to support and assist the assigned counsel.

17. While the provision of legal consultation would normally imply that a legal associate be either admitted to practice law in a state or be a university professor of law, it does not a priori require that the legal associate possess the full expertise and experience required under Rule 45 of the Rules. Indeed, the Krajišnik Appeal Decision stated that “[t]he Registry may impose additional criteria on designated legal associates who seek funding from the Tribunal (comparable to the Registry’s ability to require that Tribunal-funded counsel meet the requirements of Rule 45 of the Rules as well as of Rule 44 of the Rules)”[3] but it did not require the Registry to do so.

18. The Remuneration Scheme which followed from the Krajišnik Appeal Decision does in fact require that legal associates be “a member of the Association of Defence Counsel Practicing before the ICTY” (“ADC”).[4] Such membership requires that applicants “possess at least seven years of relevant experience, whether as a judge, prosecutor, attorney or in some other capacity, in criminal proceedings.”[5] On its face this requirement implies that a legal associate must possess experience comparable to that of assigned counsel, thereby suggesting that if this is a comparable minimum experience requirement, such a legal associate should in fairness be compensated comparably to an assigned counsel. However, experience alone does not determine the rate of pay; the functions and tasks undertaken are also important as is the level of responsibility assumed. For example, the Appeals Chamber notes that the Directive on the Assignment of Defence Counsel contemplates the possibility of legal assistants with 10 years or more of experience.[6] A legal assistant with such experience could thus be considered to have comparable experience to counsel but is not paid at the same rate of pay as counsel because he or she fulfils a different function on the defence team.

20. In any event, contrary to the Appellant’s arguments, the rationale for the ADC membership requirement does not appear to be a reflection on the type of work and tasks expected to be undertaken by legal associates. As noted by the Trial Chamber, this is further supported by the fact that the Registrar has demonstrated flexibility in the application of the Remuneration Scheme, in particular with regard to the qualification requirements under of the Remuneration Scheme.[7]

23. The Krajišnik Appeal Decision is not explicit as to whether it was referring to the volume or the rate of pay when it concluded that legal associates’ pay “should not be comparable to that paid to counsel for represented accused” and left open what would constitute adequate reimbursement.[8] However, the Appeals Chamber recalls that it has already concluded that there was no error in the Trial Chamber’s finding that the Krajišnik Appeal Decision did not require the Registrar to fund “high-level” assistants[9] particularly given the Krajišnik Appeal Decision’s finding that “where an accused elects to self-represent, he is asserting his ability to conduct his case without legal assistance [...]”.[10] With regard to the Appellant’s submission that “even if an accused assumes full responsibility for written filings, there are hundreds of other tasks which […] require the expertise of experienced lawyers”[11], the Appeals Chamber considers that the Krajišnik Appeal Decision’s reference to the Appellant drafting his own written filings was merely an example of the many tasks he is expected to undertake himself given his choice to be self-represented. While the Appeals Chamber acknowledges that by reason of his detention there are certain tasks normally undertaken by counsel which he will not be able to complete himself, in general a self-represented accused is expected to undertake all the tasks normally assumed by counsel. Acknowledgement of an appellant’s disadvantage based on his detention can reasonably be understood as one of the reasons for the provision of legal associates, but should not be confused with the role of counsel. In light of these findings, the Appeals Chamber concludes that the Appellant has failed to show that it was unreasonable for the Trial Chamber to conclude based on the Krajišnik Appeal Decision that the Registry was not required to pay legal associates at the same rate as counsel for a represented accused.

[4] Remuneration Scheme [Remuneration Scheme for Persons Assisting Indigent Self-Represented Accused”, a Registry policy promulgated on 28 September 2007], para. 5.1(A). Contrary to the Appellant’s submissions (Appeal, paras 23-24), the Remuneration Scheme does not require that at least one member of the defence team be a qualified lawyer with a minimum of seven years experience and subject to a disciplinary regime. The Remuneration Scheme only requires the inclusion of a case manager on the team (see Remuneration Scheme, para. 3.2). The Appeals Chamber notes that while in Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-PT, Decision on the Financing [of] the Defence of the Accused, 30 July 2007, paras 60-62, the Pre-Trial Judge in that case stated that at least one member of the defence team had to meet the qualifications required by Rule 45, this requirement was not retained in the Krajišnik Appeal Decision, despite the Appeals Chamber’s consideration of that decision (seeKrajišnik Appeal Decision, fns 98, 101).

[5] Constitution of the Association of Defence Counsel Practicing Before the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Article 3.2.c.

16. The Appeals Chamber considers that the delays that would inevitably result from allowing Praljak to represent himself will negatively affect the right of Praljak, as well as that of his Co-Appellants (all of whom are represented by counsel) to fair and expeditious proceedings. As a trial chamber of the Special Court for Sierra Leone has held, ensuring adequate legal representation of each defendant is of particular importance in the context of a multi-accused case.[1] The Appeals Chamber notes that this consideration is relevant to the case at hand.[2] Praljak himself has stated on several occasions that his interests would be better served through assistance of counsel, in particular during appeal proceedings.[3] The Appeals Chamber is therefore satisfied, given the specific circumstances of this case, that Praljak should not be allowed to represent himself in these proceedings and considers proprio motu that the assignment of counsel to Praljak would be in the interests of justice pursuant to Rule 45ter of the Rules. Accordingly, the Appeals Chamber finds that there is no reason to stay proceedings as requested by Praljak.

[1] See Prosecutor v. Sam Hinga Norman et al., Case No. SCSL-04-14-T, Decision on the Application of Samuel Hinga Norman for Self Representation Under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, paras 13-14, 26 (evaluating a request for self-representation in a multi-accused case and taking into account the “complexities of the judicial process and the gravity of the alleged crimes”, as well as the “disruption to the Court's timetable and calendar”).

Krajišnik insisted to represent himself in the appellate proceedings. The Appeals Chamber accepted this choice but assigned an amicus curiae (seeKrajišnik Decision on Self-Representation). On 21 February 2008, Krajišnik filed a Motion in which he sought to have the upcoming status conference postponed from 1 March 2008 to 31 March 2008 and “engage the services of attorney Alan Dershowitz to assist him in the remaining phases of the appellate process, specifically limited to a brief on the subject of Joint Criminal Enterprise”.[1]

6. In the Appeals Chamber’s opinion, the situation presents something of a conundrum. On the one hand, Mr. Krajišnik has already elected to represent himself pursuant to the Appeals Chamber Decision permitting him to do so,[2] and as noted by the Appeals Chamber at the time, he “must accept responsibility for the disadvantages this choice may bring.”[3] On the other hand, the Appeals Chamber has recognized the existence of heightened concerns regarding the basic fairness of proceedings when a defendant has chosen to self-represent.[4] For this reason, amicus curiae was appointed“to assist the Appeals Chamber by arguing in favour of Mr. Krajišnik’s interests.”[5]

7. In the past the Tribunal has wrestled with the appropriateness of certain restrictions on the right to self-representation.[6] Here, the converse question arises: are there legitimate restrictions on the right of a self-represented defendant to hire a lawyer? The Appeals Chamber has held that the right of self-representation “may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.”[7] Such a standard is also apt in resolving the present issue. In this case, the Appeals Chamber notes that Mr. Krajišnik has long sought to engage the services of Mr. Dershowitz, and there is no reason to believe that Mr. Krajišnik has deliberately manipulated the situation in order to create unnecessary delays. Furthermore, the Appeals Chamber has discretion to call for an expedited briefing schedule and thereby avoid protracted proceedings.

8. There is also no incongruity in allowing partial self-representation, even though the Appeals Chamber has referred to self-representation and legal assistance as standing in “binary opposition”.[8] What the Appeals Chamber has prohibited is a situation whereby defendants can mix-and-match various elements of self-representation and legal assistance – e.g., when a self-represented accused has attempted to partake of legal aid funding.[9] A defendant must take the bitter with the sweet when making this choice, but only with respect to each issue. There is no fundamental reason why a defendant may not make different choices – self-representing or engaging legal counsel – with regard to different issues.

9. Although the Appeals Chamber has already benefited from the legal arguments advanced by Mr. Colin Nicholls as amicus curiae, Mr. Nicholls is not a party to the current proceedings and does not represent Mr. Krajišnik.[10] By contrast, Mr. Dershowtiz can present Mr. Krajišnik’s own arguments regarding a complex issue, Joint Criminal Enterprise (“JCE”), which the Appeals Chamber acknowledges might be too complex for a non-lawyer to master. Consequently, there is a strong presumption that, despite the late date, Mr. Krajišnik should be afforded the opportunity to present the most compelling case that he can. As long as Mr. Dershowitz’s involvement at this stage will not cause substantial or persistent obstruction or delays of the appeal proceedings, and provided he meets the requirements set out in Rule 44 of the Rules, the Appeals Chamber recognizes that Mr. Krajišnik may engage Mr. Dershowitz’s legal assistance regarding a discrete issue.

10. The Appeals Chamber appreciates that there might be a risk of redundancy and complication since amicus curiae has already advanced arguments regarding JCE, the issue that Mr. Dershowitz also intends to brief. Furthermore, there is a legitimate concern about not delaying proceedings that have already proved extremely time-consuming. The Appeals Chamber considers that these concerns can be allayed.

11. As to the risk that Mr. Dershowitz’s brief might add unnecessary confusion, it should go without saying that in the event of a contradiction between the submissions of amicus curiae and Mr. Dershowitz, the Appeals Chamber will treat only Mr. Dershowitz’s arguments as representing his client’s views. To avoid unhelpful complication, the Appeals Chamber directs Mr. Dershowitz to state with precision which arguments of amicus curiae he embraces and which arguments he rejects. Although Mr. Krajišnik has addressed the JCE issue in his Appeal Brief,[11] the Appeals Chamber will regard Mr. Dershowitz’s submission as a supplementary brief on behalf of Mr. Krajišnik.

12. Furthermore, the Appeals Chamber imposes a strict briefing schedule in order to prevent unnecessarily long or time-consuming submissions and thereby foster expeditious appeal proceedings. […] Given these parameters, the Appeals Chamber is convinced that Mr. Dershowitz can advance fully any additional arguments that Mr. Krajišnik wishes to make without causing undue delay in the appeal proceedings. The Appeals Chamber must emphasize that the current scheduling for the filing of briefs shall remain unaffected.

On 29 February 2008, the Prosecution filed a motion seeking clarification on the content of Mr. Dershowitz’s supplementary brief and the extent of Mr. Krajišnik’s continued self-representation and reconsideration of the applicable word limits.[12] In its Decision of 11 March 2008 (“Krajišnik Decision on Clarification of Alan Dershowitz Participation”), the Appeals Chamber granted the Motion in part and directed Mr. Dershowitz to as follows:

9. The Appeals Chamber has already described the purview of Mr. Dershowitz’s representation, which is limited to the question of JCE.[13] Additionally, in the Decision of 28 February 2008, the Appeals Chamber directed Mr. Dershowitz “to state with precision which arguments of amicus curiae he embraces and which arguments he rejects.”[14] The Appeals Chamber orders Mr. Dershowitz to do the same with respect to the arguments that Mr. Krajišnik has already made in his appeal brief. Mr. Dershowitz must be clear as to which of the arguments are new and the extent to which they complement or supersede those arguments made by Mr. Krajišnik. In short, because Mr. Dershowitz will be acting as counsel for Mr. Krajišnik, at least in a limited capacity, the two must speak with a single voice. The arguments that Mr. Dershowitz advances will thus make clear the issues on which Mr. Krajišnik is represented by counsel..[15]

The Appeals Chamber dismissed the Prosecution’s argument in relation to the applicable word limits on the basis that the principle of “equality of arms” had not been breached and that no actual prejudice had been demonstrated at that stage.[16]

[1] Motion of Momčilo Krajišnik to Reschedule the Date of Status Conference and for Permission for Alan Dershowitz to Make a Special Appearance, 21 February 2008.

[2] Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007 (“Decision of 11 May 2007”).

[8]Decision on Krajišnik Request and on Prosecution Motion, 11 September 2007 (“Decision of 11 September 2007”), para. 40. See also Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Counsel, 1 November 2004.

[9] See, e.g., Decision of 11 September 2007, para. 41.

[10] Decision of 11 May 2007, paras 19-20.

[11] Appeal by Momčilo Krajišnik to the ICTY Judgement of 27 September 2006 (Public Filing), 28 February 2008, paras 9-24.

[12] Prosecution Motion for Clarification and Reconsideration of the Appeals Chamber’s Decision on Momčilo Krajišnik’s Motion to Reschedule Status Conference and Permit Alan Dershowitz to Appear, 29 February 2008.

Krajišnik insisted to represent himself in the appellate proceedings. The Appeals Chamber accepted this choice but assigned an amicus curiae (seeKrajišnik Decision on Self-Representation). Later, the Appeals Chamber also permitted Krajišnik to use the services of Mr. Alan M. Dershowitz who would act as Krajišnik’s counsel on matters related to his JCE convictions (see Krajišnik Decision on Alan Dershowitz Participation). When Krajišnik’s request to call Radovan Karadžić as a witness under Rule 115 of the Rules was granted by the Appeals Chamber, he also applied for authorisation to have Mr. Nathan Dershowitz as counsel examining Karadžić alongside Mr. Alan M. Dershowitz.

8. When considering the Motion, the Appeals Chamber finds it appropriate to recall that it permitted Mr. Alan M. Dershowitz to advance arguments regarding the issue of JCE on behalf of the Appellant, because this issue “might be too complex for a non-lawyer to master”.[1] Furthermore, the Appeals Chamber “recognized the existence of heightened concerns regarding the basic fairness of proceedings when a defendant has chosen to self-represent”.[2] In light of this reasoning, the Appeals Chamber is satisfied that the Appellant should be granted the assistance of counsel on the matter of JCE in conducting the interview with Mr. Karadžić whose potential evidence will be primarily relevant for this issue. This is demonstrated inter alia by the numerous references to the relationship between the Appellant and Mr. Karadžić in the Trial Judgement of 27 September 2006.[3] The Appeals Chamber also finds that the conduct of the said interview by counsel on the matter of JCE is within the scope of the Order on Motion to Interview Radovan Karadžić in which it allowed the Appellant to speak to Mr. Karadžić in order to determine whether or not he wants to call him as a witness pursuant to Rule 115 of the Rules.[4] Such procedure is consistent with the Appeals Chamber’s heightened concerns for the fairness of proceedings against a self-represented accused.[5]

9. Having thus found that counsel on the matter of JCE can conduct the interview with Mr. Karadžić on behalf of the Appellant, the Appeals Chamber will now turn to the Appellant’s request to grant Mr. Nathan Dershowitz status of counsel. The Appeals Chamber is mindful of the fact that to date, he is registered as legal consultant to Mr. Alan M. Dershowitz, and not as co-counsel.[6] However, during the appeals hearing on 21 August 2008, Mr. Nathan Z. Dershowitz made oral submissions on the matter of JCE together with Mr. Alan M. Dershowitz, using part of the time allocated to the Appellant for submission of his oral presentation.[7] Consequently, the Appeals Chamber finds that it has already implicitly authorized Mr. Nathan Z. Dershowitz to act as de facto co-counsel on the matter of JCE together with Mr. Alan M. Dershowitz. Furthermore, the Appeals Chamber is satisfied that the Appellant has shown that Mr. Nathan M. Dershowitz is sufficiently familiar with the matters related to JCE to conduct the interview with Mr. Karadžić on this issue,[8] having already made oral submissions on the matter of JCE during the appeals hearing and having worked together with Mr. Alan M. Dershowitz on the matter.[9]

[6] See correspondence from the Registry to counsel Mr. Alan M. Dershowitz by which the Registry accredited Mr. Nathan M. Dershowitz to Mr. Alan M. Dershowitz as his legal consultant, 15 August 2008, with reference to Request for Accreditation of Nathan M. Dershowitz as a Member of Momčilo Krajišnik’s Defence Team, 13 August 2008.

[7] See AT 191 et seq. See also Notice of Appearance, 12 August 2008, with reference to Scheduling Order for Appeals Hearing, 18 July 2008.

[8] This is of course subject to the fulfilment of all prerequisites under Rule 44 of the Rules by Mr. Nathan Z. Dershowitz.

[9] Momčilo Krajišnik’s Motion for Permission for Nathan Z. Dershowitz to Act as Counsel with Alan M. Dershowitz and for Extension of Time, 2 September 2008, para. 3.

11. To begin with, Article 21(4)(d) of the Statute draws no distinctions between the trial stage and the appeal stage of a case. There is thus no textual basis for concluding that the guarantee to self-representation therein (as recognized in the Milošević Decision) evaporates with the issuance of the trial judgement. Moreover, there is no obvious reason why self-representation at trial is so different in character from self-representation on appeal as to require an a priori distinction between the two. Self-representation on appeal may be a complex and tricky business, but on its face it is no more difficult (and indeed perhaps less difficult) than self-representation at trial. Both stages involve complicated factual and legal issues and require familiarity with a daunting set of procedural rules. It may never be in an individual’s interests to represent himself, either at trial or at appeal, but he nonetheless has a “cornerstone” right to make his own case to the Tribunal.

12. Finally, a review of the case law of domestic jurisdictions does not support a distinction between the trial and appeal stages for purposes of self-representation. In the course of substantial research, as supplemented by the helpful submissions of the parties, the Appeals Chamber has come across only one jurisdiction – the United States – that finds a right to self-representation at trial but not on appeal.[2] Moreover, in concluding that the United States federal Constitution grants defendants a right to self-representation at trial but not on appeal, the United States Supreme Court relied heavily on the fact that the relevant constitutional provision “does not include any right to appeal” and thus that “[i]t necessarily follows that [this provision] does not provide any basis for finding a right to self-representation on appeal.”[3] Such reasoning has no force in the situation at hand, since Article 25 of the Statute of the Tribunal plainly provides a right of appeal. The Appeals Chamber thus declines to rely on the distinction drawn in United States jurisprudence. The Appeals Chamber further considers it noteworthy that no other jurisdiction appears to draw such a distinction.[4]

[2] See Faretta v. California, 422 U.S. 806 (1975) (finding a federal constitutional right to self-representation at trial); Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152 (2000) (finding no federal constitutional right to self-representation on appeal).

[3] Martinez, 528 U.S., at 160.

[4] Indeed, the Prosecution’s extensive research led it to conclude affirmatively that common law systems which permit self-representation at trial also typically permit self-representation on appeal. Prosecution’s Corrigendum, para. 39 (“Most common law systems studied allow self-representation on appeal”).

33. Privilege stems from the attorney-client relationship, as indicated in Article 21(4)(b) of the Statute and as set forth in Rule 97 of the Rules, which provides that all “communications between lawyer and client shall be regarded as privileged”. Where an accused has opted to self-represent instead of to have counsel represent him, the basis for the privilege is removed. Mr. Krajišnik accordingly has no entitlement to privileged communications. Since the Registry has no obligation to provide him with privileged access to anyone, Mr. Krajišnik has no basis for objecting to the Registry's willingness to provide him with privileged access to up to three designated legal associates.

34. With regard to confidential information, the Appeals Chamber generally sees no error in the Registry's determination that Mr. Krajišnik may only discuss confidential material with designated legal associates. This is a difficult issue. On the one hand, given Mr. Krajišnik's distance from the region and confinement in the UNDU, it is virtually impossible for him to personally undertake investigations relating to confidential material – investigations which may prove helpful in the preparation of his defence. If he cannot discuss confidential material with those outside the UNDU, then he has no mechanism for enabling such investigations.[1] On the other hand, if Mr. Krajišnik is permitted to share confidential information with anyone he considers to be part of his team, then the risks of leakage of confidential information or of inappropriate conduct of investigations are significantly higher than where investigations are conducted under the supervision of a legal professional. Such an approach could endanger the protection of witnesses and victims (protections so important that they are specifically referenced in Article 22 of the Statute). The Registry has sought to strike a balance between these competing interests by enabling Mr. Krajišnik to share confidential information only with designated legal associates, who in turn can provide the professional supervision needed to ensure appropriate use of the confidential information. The Appeals Chamber considers that this approach does indeed strike a reasonable balance and upholds it, subject to one caveat that will be discussed in paragraph 44.

[1] Since Mr. Krajišnik's case is at the appeal stage, there is presumably little (if any) need for outside investigations. Nonetheless, the Appeals Chamber cannot rule out a priori the possibility that some need exists, and so the Appeals Chamber addresses this issue. Cf. Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Hassan Ngeze’s Motions for Approval of Further Investigations on Specific Information Relating to the Additional Evidence of Potential Witnesses, 20 June 2006, para. 27.

Article 21(4)(b) guarantees that an accused is entitled, inter alia, “to have adequate time and facilities for the preparation of his defense”. Paragraphs 35 and 36 provided some content to what this guarantee means for a self-represented accused on appeal.

35. The third issue is quantity of access. The Registry has authorized Mr. Krajišnik to have unlimited communications with any designated legal associates, and Mr. Krajišnik can contact all other persons (e.g., investigators) in accordance with standard procedures at the UNDU. When designated legal associates exist, this approach is a reasonable one. The unlimited access to the designated legal associates would provide Mr. Krajišnik with a conduit for exchanging appropriate information with other members of his team where time limitations (or other limitations) imposed by UNDU standard procedures impede direct exchange. This in turn would satisfy the requirement pursuant to Article 21(4)(b) of the Statute that an accused have “adequate time and facilities for the preparation of his defence”.

36. If no legal associates have been designated, however, then the Appeals Chamber has some concerns about the Registry's approach. In this situation, pursuant to the Registry's approach a self-represented accused is limited only to the standard UNDU procedures for communication with the outside. If these procedures do not provide a self-represented accused with sufficient opportunity to exchange appropriate information with team members outside the UNDU during the preparation of his case, then this may amount to a lack of "adequate time and facilities for the preparation of his defence" in violation of Article 21(4)(b) of the Statute […]. Nonetheless, the Appeals Chamber informs the Registry that in the event that no legal associates are designated, the Registry should ensure that Mr. Krajišnik has adequate means of communicating with his defence team while he is preparing his appeal brief and his reply brief. If accommodations beyond those provided under standard UNDU procedures are thus necessary, the Appeals Chamber expresses its conviction that the Registry will provide such accommodations in the manner it deems most consistent with preserving order and security in the UNDU.

Paragraphs 40 and 41 dealt with the issue of whether a self-represented accused is entitled to legal aid. In accordance with past practice, the Appeals Chamber held that an accused faces a binary choice of either self-representing or availing himself of legal aid.

40. In the Appeals Chamber's view, Article 21(4)(d) of the Statute does not support the proposition than an accused who elects to self-represent is nonetheless entitled to legal aid. Article 21(4)(d) gives the accused the right “to defend himself in person or through legal assistance of his own choosing”. We have held that these two options stand in “binary opposition”.[1] An accused who chooses to self-represent is not entitled to legal assistance. Hence, he is not entitled to the subsidiary right mentioned later in Article 21(4)(d) to have legal assistance paid for by the Tribunal if he is indigent.

41. The question nonetheless remains whether some other provision of the Statute or source of law requires the Registry to provide an indigent self-representing accused with funded legal aid. Mr. Krajišnik suggests that the principle of equality referenced in Article 21(1) of the Statute and the fair trial rights referenced in Article 21(2) of the Statute have this effect.[2] The Appeals Chamber does not find these arguments convincing. While Article 21(1) may require that accused in similar circumstances receive roughly comparable treatment, it does not require that an accused who opts for self-representation receive all the benefits held by an accused who opts for counsel. To the contrary, as “part of the choice to self-represent, Mr. Krajišnik must accept responsibility for the disadvantages this choice may bring”.[3] Moreover, the Appeals Chamber considers that where an accused elects to self-represent, he is asserting his ability to conduct his case without legal assistance and thus Tribunal funding for legal aid for him can be presumed to be unnecessary to the conduct of a fair trial. To the extent that the accused lacks the ability to conduct his own case and his self-representation is thus “substantially and persistently obstructing the proper and expeditious conduct of his trial”, then the remedy is restriction of his right to self-representation.[4] To allow an accused to self-represent and yet also to receive full legal aid funding from the Tribunal would, as the saying goes, let him have his cake and eat it too.

The Appeals Chamber found that funding of legal associates presented a slightly different situation and that funding for such associates should be available.

42. [T]he Appeals Chamber considers whether Article 21(4)(b) of the Statute requires the Tribunal to provide some funding for the legal associates of self-represented accused. The Appeals Chamber agrees with the Registry that the term “facilities” in Article 21(4)(b) does not normally encompass legal assistance. Nonetheless, the Appeals Chamber considers that in seeking otherwise to give effect to Article 21(4)(b) for a self-represented accused, the Registry has relied heavily on the concept of designated legal associates. To the extent that the Registry requires or encourages indigent self-representing accused to coordinate their defences through designated legal associates, it is appropriate for the Tribunal to provide some funding for such associates. Such funding should not be comparable to that paid to counsel for represented accused (particularly since work such as the drafting of written filings should be considered the responsibility of the self-representing accused), but nonetheless should adequately reimburse the legal associates for their coordinating work and for related legal consultation.

[2] The Appeals Chamber notes that while the Šešelj Decision does not clearly ground its holding that an indigent self-represented accused is entitled to funded legal aid in any particular provision of the Statute, it appears to draw on these same principles. SeeProsecutor v. Vojislav Šešelj, Case No. IT-03-67-PT, Decision on the Financing [of] the Defence of the Accused, 30 July 2007, paras 42, 49-50. […]

[3] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, para. 19 (“There is no doubt that, by choosing to conduct his own defence, the Accused deprived himself of resources a well-equipped legal defence team could have provided. A defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel”).

Finally, the Appeals Chamber noted that a self-represented accused might be entitled to free translation services.

44. The Appeals Chamber further notes that all sides appear to agree that as an indigent self-represented accused, Mr. Krajišnik is entitled to Tribunal-funded translation assistance.[1] This does not mean, however, that Mr. Krajišnik is entitled to assistance from a translator/interpreter of his choosing . […]

[1] In light of this general agreement, the Appeals Chamber need not specifically determine whether this right is rooted in Article 21(4)(b) of the Statute, Article 21(4)(f) of the Statute, or in some other principle. While most of Mr. Krajišnik’s translation needs may be met by existing translations of documents (such as the existing translation of the Trial Judgement into B/C/S), the Appeals Chamber considers that provision of an interpreter/translator is necessary to enable Mr. Krajišnik to access certain residual material that has not been translated.

46. As to Mr. Krajišnik’s request for 24-hour access to a telephone, scanner, fax, and photocopier, the Appeals Chamber considers that the Registry's denial of such resources is reasonable. While in the absence of designated legal associates, some variation from standard UNDU procedures may be warranted to enable an accused adequate means of exchanging appropriate information with his defence team, 24-hour access to such means of communication goes far beyond what is necessary to ensure the provision of adequate facilities.

26. The fundamental issue underlying the Appeal is the relation between Article 21(4)(d) of the Statute and the Trial Chamber’s appointment of standby counsel to Karadžić. Article 21(4) of the Statute reads, in relevant part:

In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(d) […] to defend himself in person or through legal assistance of his own choosing […]

By their ordinary meaning, the rights provided for in Article 21(4)(d) of the Statute “stand in binary opposition”.[1] Accordingly, Article 21(4)(d) of the Statute does not provide an accused with the minimum guarantee of both the right to self-represent and the right to counsel of his own choosing; only the right to one or the other. Karadžić has elected to remain self-represented[2] and thus does not enjoy any rights that are derived from choosing to be represented by legal counsel.[3]

27. Karadžić’s contention that he should be accorded the rights of those who choose to be represented by legal counsel because the Trial Chamber has signalled its intention to override his election to self-represent is unpersuasive. The jurisprudence of the Tribunal establishes that the right to self-represent is not absolute and may be subject to certain limitations.[4] A Trial Chamber may restrict the right to self-representation in appropriate circumstances where “a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial”.[5] It is under this rubric of curtailing Karadžić’s right to self-representation that the Trial Chamber issued its Decision on Appointment of Counsel.[6] If the Trial Chamber ultimately decides to assign counsel to represent Karadžić’s interests at trial, it will not be because the Trial Chamber is recognizing a voluntary decision on behalf of Karadžić to cease his self-representation. Instead, it will be because the Trial Chamber has found that Karadžić’s persistent obstructive behaviour has made it necessary, in the interests of justice, to limit his right to self-representation by assigning counsel to represent his interests.

28. […] The text and structure of the Directive, Rules and Article 21 of the Statute confirm that the Directive does not apply to individuals who have chosen to self-represent. The Preamble of the Directive explicitly references Article 21 of the Statute, which encompasses the binary opposition of self-representation and appointment of counsel. In addition, the Directive’s text emphasizes that its focus is on the process of providing “legal assistance to indigent suspects or accused”. It also references Rule 45 of the Rules, which again focuses on the assignment of counsel to indigent suspects and accused. Self-represented individuals, whose ability to pay for counsel is by definition irrelevant, do not fall within its compass. By contrast, assignment of counsel to self-represented individuals is addressed by Rule 45ter of the Rules, which is not within the Directive’s scope.

29. Insofar as the Registrar took guidance from certain provisions of the Directive, his exercise of discretion did not render the Directive’s procedures binding on him with regard to the appointment of standby counsel for Karadžić.[12] As the Trial Chamber correctly noted, “there exists no specific set of guidelines to be followed by the Registrar” in relation to the appointment of counsel to represent the interests of an obstructive self-represented accused.[13] Considering related legal authorities in developing a procedure to select standby counsel, where such procedures were not outlined in any binding manner ex ante, was well within the Registrar’s discretion, and did not render those legal authorities binding.

[2] Karadžić was provided the opportunity to choose whether to represent himself or be represented by counsel and chose to represent himself. Status Conference, T. 43, 17 September 2008. Karadžić currently retains and is exercising his right to self-representation. See Decision on Appointment of Counsel[Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2009], para. 25.

[3] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, para. 19. Rights Karadžić does not enjoy include, inter alia, the right to communicate with counsel of one’s own choosing guaranteed under Article 21(4)(b) of the Statute.

[10] Rule 45ter of the Rules provides that: “The Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused”.

[11] Article 2 of the Directive defines “Counsel” as “a person representing or eligible to represent a suspect or accused pursuant to Rules 44, 45 and 45 bis of the Rules”. Further evidence that Karadžić’s situation does not fall under the purview of the Directive is found in the Decision on Appointment of Counsel. This decision to order the Registrar to appoint standby counsel was rendered not pursuant to Rule 45 of the Rules and the Directive, but instead pursuant to Rule 54 of the Rules, which allows Trial Chambers to issue various orders related to the preparation and conduct of a trial. See Decision on Appointment of Counsel, para. 28.

[12] Cf.Krajišnik Decision, fn. 100, quotingProsecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, para. 18 (finding that although Krajišnik was not entitled as of right to amicus curiae counsel, such appointment was warranted under the circumstances).

30. Karadžić places significant emphasis on the Šešelj Decision’s instruction that the Trial Chamber provide Šešelj with a list from which he could select his standby counsel, rather than impose one directly, as the Trial Chamber had chosen to do. […]

31. The Appeals Chamber notes that the Šešelj Decision was rendered in a unique factual and procedural context very different from Karadžić’s. […]

Taking into account the context of the Šešelj trial, the Decision concluded that the provision of opportunities to participate in the selection of standby counsel beyond those required by the Rules or Article 21(4) of the Statute was necessary in order to ensure the [ešelj trial’s fair and expeditious conduct under Article 20(1) of the Statute.[2] The Appeals Chamber reiterates that a Chamber’s context-limited decision to provide for processes beyond those guaranteed by the Statute and the Rules does not create an automatic right to these processes.[3]

32. […] In the [Šešelj] case, the Appeals Chamber was acting to ensure an orderly and careful restart of trial proceedings, after having previously found that the Trial Chamber violated Šešelj’s right to self-representation guaranteed under Article 21(4)(d) of the Statute by failing to warn him that his behaviour might result in the curtailment of that right.[4] By contrast, Karadžić has been warned on numerous occasions that his behaviour obstructs the expeditious conduct of the proceedings and that, should it continue, he risks curtailment of his right to self-representation.[5] Given the flexibility exhibited by the Registrar in the provision of standby counsel to Karadžić, the Appeals Chamber sees no basis for requiring that he be provided with greater opportunities to select personally between individuals available to serve as standby counsel.

35. The Appeals Chamber underscores that limitations on the right to self-representation are a rare occurrence, and that their details are necessarily context-specific. More particularly, the appointment of standby counsel is not subject to more formalized procedures designed to regularize the assignment of counsel to indigent suspects and accused who do not choose to self-represent. In assigning standby counsel, the Registrar or a Chamber may, but are not required to, make reference to procedures used in the assignment of counsel in other contexts. This more fluid and individualized approach to the appointment of standby counsel in cases of self-representation is amply justified by the fact that the reasons for and specific parameters of each appointment will vary considerably.

10. At the outset, the Appeals Chamber observes that Karadžić’s Appeal is premised on an alleged error of law, specifically that the Trial Chamber erred in equating his situation with that of an accused represented by counsel. It is evident the Trial Chamber considered that Karadžić should exercise his right to self-representation within the frame-work of measures introduced to ensure the reasonable progress of the trial.[1] In this context, the Trial Chamber observed:

Sitting four or five days a week should not place an unreasonable burden on the Accused; indeed, many defence counsel have represented their clients before this Tribunal on a five-day sitting schedule. However, should the Accused find that the task of representing himself becomes too arduous, he may consider the various options available for varying his representation arrangements.[2]

11. The Appeals Chamber recalls that “in general a self-represented accused is expected to undertake all the tasks normally assumed by counsel”.[3] The daily rigour of preparation for trial is a fundamental part of these tasks. Moreover, the Appeals Chamber underscores that while “a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair” to self-represented accused, an accused “who decides to represent himself relinquishes many of the benefits associated with representation by counsel.”[4]

12. The Appeals Chamber discerns no error in the Trial Chamber’s approach. The Impugned Order considers a broad range of factors, including Karadžić’s trial-readiness, his advance notice of the witnesses to be called, his apparent good health and the considerable resources at his disposal, which it found comparable to those available to an accused represented by counsel.[5] Furthermore, the Trial Chamber underscored its continuing commitment to its statutory duty to ensure a fair and expeditious trial.[6] In these circumstances, Karadžić has failed to demonstrate that the Trial Chamber erred in its application of the governing law. Indeed, the reasoning in the Impugned Order amply demonstrates the Trial Chamber’s commitment to ensure the fairness of the proceedings.[7]

[5] Impugned Order, paras 4, 5, 7. The Appeals Chamber considers that the arguments raised by Karadžić with respect to the alleged inequality of arms and his impending ill health to be without merit.

[6] Impugned Order, para. 7. The Trial Chamber found that “there is [no] reason to retain the three-day per week sitting schedule as a general practice for the remainder of the Prosecution phase of this case, or that moving to a four-day per week schedule will have any negative effect on the rights of the Accused”. See Impugned Order, para. 8.

The Appeals Chamber reaffirmed the validity of the proportionality principle as stated in the Milošević Decision on Defence Counsel.[1] In restricting the accused’s right to self-representation, the Trial Chamber must impose restrictions that are limited to the minimum extent necessary to protect the International Tribunal’s interest in assuring a reasonably expeditious trial.[2]

CONSIDERING that Šešelj has elected to represent himself and that he has the right to self‑representation at the appeal stage;

[…]

CONSIDERING that, in view of Šešelj’s current position not to appear at the appeal hearing, the Appeals Chamber must take appropriate measures to ensure that his interests are represented at the upcoming appeal hearing in order to ensure the fair and expeditious conduct of the proceedings;

CONSIDERING that, prior to restricting Šešelj’s right to self-representation, the Appeals Chamber must issue a warning that is specific in nature;

CONSIDERING that, if [ešelj maintains his intention not to attend the appeal hearing, it will be in the interests of justice to instruct the Registrar pursuant to Rules 46 and 131 of the Rules to assign a standby counsel to represent Šešelj’s interests in the event that Šešelj is not present at the appeal hearing;

CONSIDERING that any restrictions on Šešelj’s right to represent himself must be limited to the minimum extent necessary to protect the Mechanism’s interest in a reasonably expeditious resolution of the appeal before it;

CONSIDERING, therefore, that, in order to preserve Šešelj’s right to self-representation, the mandate of the standby counsel shall be strictly limited to ensuring that Šešelj’s procedural rights at the hearing are protected if he does not attend, and shall not extend to making a response on [ešelj’s behalf on the substance of the Prosecution’s appeal;

[…]

CONSIDERING that Šešelj should be given an opportunity to reconsider his position not to attend the appeal hearing prior to instructing the Registrar to assign standby counsel;[5]

CONSIDERING that Šešelj’s refusal to respond to the Order indicates that he maintains his previously stated position not to participate in any way in the appeal hearing;

CONSIDERING that Šešelj’s position not to participate in the appeal hearing rises to the level of a disruption of the proceedings that would warrant the restriction of his right to self-representation;

CONSIDERING that, pursuant to Rules 46 and 131 of the Rules, the assignment of standby counsel is warranted in the interests of justice to ensure the protection of Šešelj’s rights at the appeal hearing;

RECALLING that Article 19(4)(d) of the Statute of the Mechanism provides for an alternative between the right to self-representation and the right to legal assistance, but does not entitle an accused or an appellant who is represented by counsel to self-representation;

[…]

RECALLING that assigned counsel “shall be responsible for all aspects of defence of [...] accused before the Mechanism”;[2]

CONSIDERING, however, that the Appeals Chamber may exercise its discretion to allow persons other than counsel and co-counsel to make representations before it;

[…]

FINDING that it is in the interests of justice to grant Karadžić the right of audience before the Appeals Chamber to present arguments related to the Appeal Grounds;

CONSIDERING that this finding is without prejudice to the opportunity which will be afforded to Karadžić to make a brief personal address to the Appeals Chamber at the end of the hearing of the appeals;